Informal international law-making and accountability

Leaders meet informally on an almost weekly basis. Their decisions affect livelihoods and businesses. Can citizens still hold them accountable?

Joost Pauwelyn (Graduate Institute, Geneva) talks as project leader about the HiiL Research project Informal International Law-Making during the 2011 Law of the Future Conference in The Hague.

The challenge

Heads of state join in a G20 framework. Presidents of national central banks have their Basel Committee. Regulatory authorities and pharmaceutical industry regularly meet to discuss scientific and technical aspects of drug registration and to set world wide standards. In most cases only part of those affected by these processes are participating. For instance, until recently, even a major power such as Australia was not represented in the standardization process for drug registration.

Although not legally binding, in real life the outcomes of these processes amount to rules of the game that stakeholders have to follow if they want to do their business. As a result, Australia did follow the drug registration standards.

International law-making has changed dramatically. In comparison to each decade since the 1950s, in the last decade the number of treaties deposited with the UN dropped with 40%. The same trend can be observed for decisions by international organisations. Thus, whereas treaties and formal international law stagnate, novel, informal processes are thriving. How do they work? Is there sufficient transparency? Do the outcomes take all interests into account? How is democratic legitimacy organised, if at all? The answers to these questions are important to government and business leaders who seek broader support for their activities in the international arena, and for, e.g., parliamentarians and civil society organisations that monitor international law-making.

The response

In 30 case studies on informal law-making in fields such as finance, health and the internet, the researchers laid bare what happens behind the closed doors of dining and conference rooms. Procedural rules and roles are not clearly defined. Leaders go to meetings without a precise mandate from the home front. Meetings are prepared without a formal secretariat. Note taking and reporting are mostly organised ad hoc. Even so, participants find the processes highly effective.

Accountability: hard to improve

Clearer instructions from home jeopardize the flexibility that makes informal talks so effective. Monitoring the dealings of policy-makers in the international arena has always been difficult for members of parliament, but now they have to guess whether informal arrangements are in the making. Only if they know, they can ask questions. 

Innovative ways of monitoring

Accountability is hard to achieve here. The researchers suggest that objectives of meetings should be more transparent. Reasons for decisions should at least be published, as well as those for rejecting alternatives. The position of countries and stakeholders not involved can be improved by publication of the proposed decision and an invitation to send in comments.

Project details

Project leader: Prof. Joost Pauwelyn, Prof. Jan Wouters & Prof. Ramses Wessel
Duration: 2010 – 2012
Contact: Martin Gramatikov

Related publications

Books

Some chapters are available online in draft form: 

Draft Chapter 4, Voigt, S., (2011), The Economics of Informal International Law - An Empirical Assessment 

Draft Chapter 11, Pollack M.A., Shaffer G., (2012), The Interaction of Formal and Informal Lawmaking 

Draft Chapter 20, Verdier P-H., (2011), U.S. Implementation of Basel II: Lessons for Informal International Law-Making 

Draft Chapter 21, Berman A., (2012), The Role of Domestic Administrative Law in the Accountability of Transnational Regulatory Networks: The Case of the ICH

Articles

Unpublished work

Some of the work undertaken as part of the project has not been published, but is nevertheless useful.

  • List of INLAW bodies

Before choosing a set of case studies we compiled a list of INLAW bodies. Download the list here.

  • Questionnaires

The questionnaires that served as the basis for the case studies are available here and here.

  • Case studies

To download unpublished case studies, click here.